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Land
–Ownership - Land Title Tribunal
– Declaration of title -
Evidence Decree 1975, NRCD 323,
- Capacity to grant - Whether
or not the acquisition by the
first claimant was fouled by the
fact that his grantor was a
caretaker of Maamobi lands who
ipso facto lacked the
requisite capacity to grant what
he purported to do -
HEADNOTES
The claim of
the first claimant was that his
uncle Charles Gilbert Noi
granted the land to him in 1975.
The uncle had himself obtained a
grant of the land from Nii
Kpakpo Adokwei Saka, the
care-taker of Maamobi lands.
Charles Noi’s conveyance was
confirmed in 1966 by Nii Dowuona
V the then Osu Manche. The 1st
claimant (appellant herein)
claimed he leased the land to
one Daniel Ofori in 1978 and an
indenture was issued but the
transaction did not materialize
for Daniel Ofori never went to
occupy the land nor even paid
for it. After this the 3rd
claimant/appellant sought and
obtained permission to park his
vehicle on the land.
The second
claimant based his claim of
title to the land on the
strength of a conveyance from
Nii Dowuona the Osu Manche, to
his father, Emmanuel Yao
Attigah, who also conveyed his
interest to the 2nd
claimant by a conveyance dated
16th November, 1973.
During the construction of the
Nima Highway the Government
compulsorily acquired a portion
of his land for the
construction. By his claim he
sought to recover the portion
that was not covered by the
acquisition.
On the part
of the 3rd
claimant/respondent, he said he
entered the land in 1974 when it
was vacant and has since then
been in quiet and peaceful
occupation there of. It
was in 1981 when he approached
Nii Nortei Owuo III the Osu
Manche (as he then was), for a
grant of the land from him, but
before he could succeed in the
enterprise, he was destooled. In
1986 he succeeded in getting a
grant from Nii Ashong Omaboe,
the then Osu Manche.
In brief then
it was these competing claims
that were sent to the Land Title
Tribunal for adjudication.
At the end of the trial, the
Tribunal gave judgment in favor
of the 1st and 2nd
claimants, which judgment was
later reversed on appeal by the
High Court. The 3rd
claimant appellant was
dissatisfied with the verdict
and appealed to the Court of
Appeal. The result was that the
Court of Appeal affirmed the
decision by the High Court and
as stated already, the 1st
claimant appealed to this court
HELD
The evidence
shows that the Land Title
Registrar was right to have
cancelled the land title
certificate when he discovered
it was null and void. He so
could cancel it even suo motu.
For all the foregoing all the
grounds of appeal are dismissed
and the judgment of the Court of
Appeal is hereby affirmed. The
appeal is dismissed.
STATUTES
REFERRED TO IN JUDGMENT
CASES
REFERRED TO IN JUDGMENT
Odoi v
Hammond [1971] 1 GLR 375
Akwei v
Awuletey [1960] GLR 231, S.C
Hammond v
Odoi [1982-83] GLR 1215, SC.
Malm v
Lutterodt [1963] 1 GLR 1 S.C
Ohimeng v
Adjei [1957] 2 WALR 275
Total Oil
Products v Obeng & Manu [1962] 1
GLR 228
BOOKS
REFERRED TO IN JUDGMENT
DELIVERING
THE LEADING JUDGMENT
ANSAH, JSC:-
COUNSEL
PHILLIP
ADDISON FOR THE 3RD
CLAIMANT/RESPONDENT/RESPONDENT.
NENE A. O.
AMEGATCHER FOR THE 1ST
CLAIMANT/APPELLANT/APPELLANT.
J U D G M E N
T
____________________________________________________________________________
ANSAH, JSC:-
This is an
appeal from the judgment of the
Court of Appeal, coram, E.K.
Piesare (presiding), S.K. Marful
Sau and Mariama Owusu JJA, dated
13th March 2008, in
which the court dismissed the
appeal against the judgment by
the High Court which had set
aside the judgment of the trial
Land Title Tribunal.
It is against
this judgment that the present
appeal has been brought to us on
the following grounds of appeal,
namely that:
“i) The Court
of Appeal misdirected itself and
caused a substantial miscarriage
of justice when it held that the
grant to the appellant was null
and void because the caretaker
of Osu stool lands had no
authority to grant Osu stool
land when the case of the
Appellant was that the caretaker
in his position as an agent of
the stool granted the land to
Appellant’s grantor which grant
was ratified/endorsed
concurrently with the execution
of the document by his principal
the then Osu Mantse Nii Dowuona
V.
ii) The Court
of Appeal misdirected itself in
giving effect to the
unregistered title of the
Respondents when there was clear
evidence on record that the
Appellant had a prior registered
document of title.
iii) The
Court of Appeal failed to take
recognizance of the legal effect
of the fact that at the time of
the purported grant by the Osu
Stool to the Respondent the
Appellant, a subject of the
stool had been in effective
occupation of the land and
therefore there could be no
alienation of the land without
his consent and concurrence.
iv) The Court
of Appeal misdirected itself in
giving effect to the
cancellation by the Land Title
Registrar of the land title
certificate duly obtained by the
Appellant prior to the reference
of the dispute to the Land Title
Adjudicating Tribunal, when the
enabling statute did not give
the Land Title Registrar power
to do so suo motu.
v) Further
grounds of appeal would be filed
upon the receipt of the Record
of proceedings.”
None has so
far been filed, despite this
intimation.
Before
delving into the merits of the
appeal I have decided to give a
resume of the facts that
culminated in the appeal. They
were that following conflicting
claims by the 1st, 2nd
and 3rd claimants to
the area in dispute, the Chief
Registrar of Lands referred the
case to the Land Title
Adjudicating Committee Tribunal,
Accra, for adjudication under
Sections 22 and 23 6 (b) of the
Land Title Registry Law, PNDCL
152. On the evidence the land in
dispute was at Maamobi which was
indisputably on Osu Stool lands.
There is no dispute by the
parties about this fact.
The claim of
the first claimant was that his
uncle Charles Gilbert Noi
granted the land to him in 1975.
The uncle had himself obtained a
grant of the land from Nii
Kpakpo Adokwei Saka, the
care-taker of Maamobi lands.
Charles Noi’s conveyance was
confirmed in 1966 by Nii Dowuona
V the then Osu Manche. The 1st
claimant (appellant herein)
claimed he leased the land to
one Daniel Ofori in 1978 and an
indenture was issued but the
transaction did not materialize
for Daniel Ofori never went to
occupy the land nor even paid
for it. After this the 3rd
claimant/appellant sought and
obtained permission to park his
vehicle on the land.
The second
claimant based his claim of
title to the land on the
strength of a conveyance from
Nii Dowuona the Osu Manche, to
his father, Emmanuel Yao
Attigah, who also conveyed his
interest to the 2nd
claimant by a conveyance dated
16th November, 1973.
During the construction of the
Nima Highway the Government
compulsorily acquired a portion
of his land for the
construction. By his claim he
sought to recover the portion
that was not covered by the
acquisition.
On the part
of the 3rd
claimant/respondent, he said he
entered the land in 1974 when it
was vacant and has since then
been in quiet and peaceful
occupation there of.
It was in
1981 when he approached Nii
Nortei Owuo III the Osu Manche
(as he then was), for a grant of
the land from him, but before he
could succeed in the enterprise,
he was destooled. In 1986 he
succeeded in getting a grant
from Nii Ashong Omaboe, the then
Osu Manche.
In brief then
it was these competing claims
that were sent to the Land Title
Tribunal for adjudication.
At the end of
the trial, the Tribunal gave
judgment in favor of the 1st
and 2nd claimants,
which judgment was later
reversed on appeal by the High
Court. The 3rd
claimant appellant was
dissatisfied with the verdict
and appealed to the Court of
Appeal. The result was that the
Court of Appeal affirmed the
decision by the High Court and
as stated already, the 1st
claimant appealed to this court
on the grounds aforementioned
...
The first ground of appeal
is of crucial importance for
counsel spilled a lot of ink on
it and in my opinion rightly so.
In fact right from the Tribunal,
the High Court the Court of
Appeal, the unequivocal legal
point was that the acquisition
by the first claimant was fouled
by the fact that his grantor was
a caretaker of Maamobi lands who
ipso facto lacked the
requisite capacity to grant what
he purported to do. Equally, his
benefactor the first claimant
appellant took nothing in law on
the nemo dat rule.
The law on
the capacity of a caretaker to
grant Maamobi lands has been
well settled in Odoi v
Hammond [1971] 1 GLR 375 Azu
Crabbe J.A. (as he then was)
held at page 382 that:
“It is now
common learning in the country
that in an action for a
declaration of title to land the
onus is heavily on the plaintiff
to prove his case and he cannot
rely on the weakness of the
defendant’s case. He must indeed
“show clear
title”: per Yates Ag C.J. …. For
a stool or family to succeed in
an action for declaration of
title it must prove its method
of acquisition conclusively,
either by traditional evidence
or by overt acts of ownership
exercised in respect of the land
in dispute.” Despite the
clarification in subsequent
cases on the nature and quality
of the burden of proof on a
plaintiff in an action for a
declaration of title to land as
epitomized in our Evidence
Decree 1975, NRCD 323, what the
learned judge said is the law
applicable today.
In Odoi v
Hammond (supra), the Court
of Appeal referred to the
evidence by the plaintiff in
support of his case that the
land in that dispute was at
Kotobaabi and belonged to the
Nii We family ‘absolutely’ but
there was no evidence as to how
that family became the owners of
that land. The trial judge had
found that the allodial title to
the whole of Kotobaabi had been
vested in the Osu Stool, and the
Court of Appeal upon analyzing
the evidence, concluded that
plaintiff could only pretend to
have acquired an absolute title
because his grantors, the Nii We
family, had no power to transmit
it to the plaintiff. The reason
was that it had been decided in
Akwei v Awuletey [1960] GLR
231, S.C that the
Maamobi-Kotobaabi-Dzorwulu lands
were part of Osu stool lands and
the Osu Mantse was the proper
authority to grant them. In the
result, the grantees took
nothing for their title was null
and void. It is significant to
observe that Odoi v
Hammond was affirmed on
appeal sub nom Hammond v Odoi
[1982-83] GLR 1215, SC.
It is
significant to note also that
the facts in the present appeal
bear some close resemblance to
those in Odoi v Hammond
(supra). In this appeal the root
of title of the first
claimant/appellant was that the
grant was by the caretaker of
the Maamobi lands, Nii Kpakpo
Adokwei Saka and not the Osu
Manche, the authority with the
capacity to grant such lands.
The High Court, held the grant
by or through Nii Saka was null
and void, a fact affirmed on
appeal by the Court of Appeal.
The statement of case by the
appellant in support of ground
one of appeal was substantially
an admission of the weight of
authority in Akwei v
Awuletey (supra) that
Maamobi is part of Osu stool
lands and the Osu Manche is the
proper authority to alienate it.
In the Odoi v Hammond
cases the appellate courts gave
their imprimatur to it. Just as
the grant of Osu stool land by a
person other than the Manche was
declared null and void, so did
the Court of Appeal in this case
affirm the legal point that the
grant by the caretaker of the
Maamobi lands, was equally null
and void. (I must make bold to
declare that a grant by a mere
caretaker of Stool lands is
null and void).
A
cursory reading of the
submissions by the appellant on
ground one of appeal reveals
that counsel did not fail to
recognize the weight and
authority in Akwei v Awuletey
(supra) and Hammond v
Odoi (supra) cases and I
fully endorse the stand by
counsel. But counsel went beyond
this recognition and made a bold
attempt to whittle down the
authority to suit modern trends.
To quote the ipsissima verba
of counsel, he said:
“It has been
stated ad nauseam throughout the
history of the matter that the
grant by the caretaker of
Maamobi lands to the Appellants
uncle was void because he had no
power to grant Osu Stool lands.
The prior grant being invalid it
could not be cured by the
confirmation of the Osu Mantse.
The reasoning behind this is the
celebrated case of Akwei v
Awuletey [1960] GLR 23
and others such as
Hammond v Odoi [1982] GLR 1215
in which this Honorable
Court held that the proper
person to alienate Osu Stool
lands was the Osu Mantse. Ever
since that ratio burst on the
judicial firmament it has been
religiously followed and
tenaciously applied by the
courts as regards alienation of
Osu Stool lands with the courts
fiercely resisting any arguments
which seek to distinguish and or
challenge the applicability of
this ratio.
“Society is
dynamic and fifty years thereon
one wonders whether this ratio
is still relevant/applicable
especially in view of the very
pertinent issues raised by the
instant appeal. Must justice be
sacrificed on the altar of
strict adherence to what we may
call the status quo of judicial
reasoning and thereby cause
great hardship and fairness to
the Appellant? We think not and
it is our humble prayer that
this honorable court may be
emboldened to make that
distinction today.”
Counsel for the
respondent rejected the call by
counsel for the appellant. He
submitted that the issues raised
by the appeal, just like the two
cases upon which they were
decided, are so settled that any
attempt at their reversal would
result in a social upheaval.
That made the call by the
appellant unwarranted.
The appellant
did not mince his words when he
pointed out a reason why the
principles in Akwei v
Awuletey (supra), ought to
be reconsidered, namely, by the
principle of agency by which the
acts of an agent could be
adopted or ratified by his
principal.
It was clear
that Akwei v Awuletey
(supra) decided that “only
the Osu Mantse and his elders
including the quarter headmen
could grant”. Thus stated,
it is unnecessary to widen the
scope of who qualify to grant
Osu lands besides the Osu Mantse
and his elders for, the term
very often has been used to
include his agents, successors,
privies and assigns. The scope
of those who may grant portions
of Osu Stool lands is wide
enough to include the Osu
Manche, and his elders including
quarter headmen and caretakers.
A reading of the cases will mean
then that it is when the
caretaker acts alone without the
knowledge, consent and
concurrence of the Osu Mantse,
or when the Osu Manche acts
alone without his elders
including the quarter headmen
that the grant would be declared
null and void. The other
debilitating factor is where the
grantor was neither an Osu
Manche, or his elder or quarter
headman.
There is much
virtue in maintaining the status
quo in an area of human endeavor
as volatile and pregnant with
danger, disquiet, chaos and
confusion as land acquisition,
use and alienation, in Ghana as
a whole and Accra in particular.
Nothing should be done to give
the faintest impression that
virtually anybody can do
anything with land acting all
alone. There ought to be
orderliness in this area
otherwise people like the
so-called land-guards would
begin to also grant stool lands
in Accra and elsewhere just to
compound the problem on hand..
Already there
are enough conditions on how an
agent’s acts may validly be
adopted or ratified by his
principal. Malm v Lutterodt
[1963] 1 GLR 1 S.C laid
down the conditions which must
be satisfied; the court said:
“To
constitute a binding adoption,
or ratification of acts done
without previous authority, (1)
the acts must have been done
for, and in the name of the
supposed principal; and (2) full
knowledge of them, and
unequivocal acknowledgement
after knowledge, must be proved;
or else the circumstances must
warrant the clear inference that
the principal was adopting the
acts of his supposed agent
whatever their nature and
culpability. Ratification must
be evidenced by clear adoptive
acts or by
acquiescence.”
I have read
the whole evidence provided by
the appellant, including the
unchallenged oral evidence and
the documentary evidence in
Exhibit A2, to offer the proof
that the Osu Manche Nii Dowuona
V ratified or adopted the grant
of the Maamobi land to Charles
Gilbert Noi, the uncle of the
appellant, by Nii Kpakpa Adokwei
Saka the caretaker of the
Maamobi lands, the same day as
Exhibit A2 was made. A careful
reading of A2 reveals it was
made by Nii Saka as the ‘donor’
but not in the name of the Osu
Manche so that he could ratify
it later. That meant the
transaction between Nii Saka and
Charles Gilbert Noi was not
adopted or ratified properly so
as rectify the anomalous
situation. It remained the acts
of the caretaker of Maamobi
lands purporting to grant Osu
Stool lands to Charles Gilbert
Noi. He lacked the capacity to
do so and nothing passed or was
received legally under the
transaction; the Court of Appeal
was therefore right in
concluding as it did in its
judgment that following
Hammond v Odoi [1982-83] 1 GLR
1215, only a valid customary
grant could be confirmed in
writing by the same grantor or
his successor. It remained
solid. I affirm the decision by
the Court of Appeal that the
caretaker/headman of Maamobi
lands had no authority to grant
Osu Stool land, unless the Osu
Mantse adopted or concurred in
the grant later upon knowing the
true facts. The Court of Appeal
affirmed the court’s finding
that that requisite condition
was not satisfied.
Consequently, ground 1 of appeal
fails and is accordingly
dismissed.
I must remark
that I am not enthused by the
invitation by counsel for the
appellant to question or reject
the authority in Akwei v
Awuletey [1960] GLR, or, Odoi v
Hammond [1971] 1GLR 385 and
Hammond v Odoi [1982-83]1 GLR
1215, SC, for counsel did
not provide any satisfactory
reason to convince me enough to
do so. Where judicial
authorities are so well settled
by repeated use and application
and has indeed been followed in
the courts over a long period of
time, then it is not enough to
rob it of efficacy just because
of its age or that time had come
to question its ratio or be
rejected. I am not advocating
they must be followed slavishly;
the facts and circumstances and
the justice of each particular
case notwithstanding. I only
say it required a strong reason
for so questioning the
authority. I reject the
invitation by counsel for the
appellant with the greatest
respect for it is a sure recipe
for chaos and confusion in land
acquisition, use and alienation.
The evidence
offered by the appellant to
establish or prove his root of
title was hinged on Exhibits A2,
the grant from appellant’s uncle
to him appellant, and also
Exhibit B, the grant from the
caretaker which on the evidence
was not properly adopted by the
Osu Manche, to the appellant’s
uncle. The lower courts herein,
namely the Land Title
Adjudication Committee Tribunal,
the High Court and the Court of
Appeal held both exhibits were
null and void. In this appeal
the appellant did not succeed in
turning the scales in his favor.
The result was that the grant
was null and void ab initio;
nothing could ever be founded on
it for in law you cannot put
anything on nothing and hope it
to remain there it will fall;
also, “Ex nihilo nihili fit” (
nothing comes out of nothing).
The maxim of old is still good
and applies to this appeal. I
believe I state the law
correctly that where an
appellant’s title was
derivative, he ought to
demonstrate that the predecessor
in title held a valid title
which he could pass to his
grantee, for if the foundation
was tainted the superstructure
was equally tainted.
It was
incumbent on counsel who invited
this court to go the way of an
iconoclast and pull down one of
the pillar and foundation of Osu
customary land law to show a
strong and cogent reason why it
should be so.. Counsel did not
show in any way that the
authorities he cited have fallen
into desuetude or are so
moribund that they ought not to
be followed for they are no
longer good law. On the contrary
the view is that they are not to
be given their quietude for they
remain of much abiding value.
Ground 2 of
appeal is of no much
significance, for even if the
appellant registered his
document of title, registration
per se does not confer title on
a person; this now trite
learning. It is the underlying
facts that matter. Here in this
appeal, the evidence shows that
the title of the appellant was
null and void and in that state,
no amount of registration will
save it and clothe it with
validity. Accordingly ground two
of appeal is dismissed.
Ground 3 did
not fare any better. Even though
the appellant occupied the land
in dispute as subjects of the
Osu stool, the grounds thereof
were proved to be null and void,
it was not valid enough to be
labeled effective occupation
which was necessary to make it
legally inviolable. That I
believe is the true meaning of
the principle in Ohimeng v
Adjei [1957] 2 WALR 275,
which held that a stool subject
has a determinable interest in
stool land and Total Oil
Products v Obeng & Manu [1962] 1
GLR 228 cited by the
appellant in his submissions.
The latter case decided inter
alia, that a stool cannot
alienate land in the possession
of a stool subject without the
consent of the subject. That
ground of appeal is also
dismissed.
Ground 4 must
be dismissed in only a few
words. The evidence shows that
the Land Title Registrar was
right to have cancelled the land
title certificate when he
discovered it was null and void.
He so could cancel it even suo
motu.
For all the
foregoing all the grounds of
appeal are dismissed and the
judgment of the Court of Appeal
is hereby affirmed. The appeal
is dismissed.
J. ANSAH
JUSTICE OF
THE SUPREME COURT
S. A. BROBBEY
JUSTICE OF
THE SUPREME COURT
R.
C. OWUSU (MS)
JUSTICE OF
THE SUPREME COURT
ANIN
YEBOAH
JUSTICE OF
THE SUPREME COURT
B. T.
ARYEETEY
JUSTICE OF
THE SUPREME COURT
COUNSEL:
PHILLIP
ADDISON FOR THE 3RD
CLAIMANT/RESPONDENT/RESPONDENT.
NENE A. O.
AMEGATCHER FOR THE 1ST
CLAIMANT/APPELLANT/APPELLANT.
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